Protecting Business Innovations Via Copyright
Watch Course Overview: https://youtu.be/mUja4iwbrTE
Intellectual property rights (IPR) has a great impact on innovation development and society. In Science, Engineering, and Business, we seek to create wealth through innovation in products, designs, manufacturing processes, and business systems or models. However, innovation leaders often FAIL to benefit from their discoveries and inventions when they are unable to adequately protect those innovations.
This course provides learners with an understanding of Copyright law and how it can be used to protect business innovation. The course focus is on protecting innovations with copyright as one of several tools that can be used by companies and individuals to protect creative innovations. In additional to learning about how copyright works in theory, we will also discuss situations in which copyright might not be effective in protecting innovations, and will focus on the legal issues involved from a practical business perspective rather than from a purely legal viewpoint. This course is one part of a four course series focusing on protection of business innovations using copyright, patent, trademark and strategy, and these four courses may be taken in any order that is most beneficial to students interested in learning about protecting innovation.

Reviews

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The course is really well presented. The discussion videos are awesome!

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Apr 13, 2019

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I wish if the written notes or powerpoint were available.

From the lesson

Copyright Limitations

Fair use is the largest area of exceptions of copyright. It is not a right, it is a defense. This week will cover the rules of fair use, how companies apply it, fair use limitations and will introduce more copyright limitations you should be aware of.

Taught By

Theodore Henry King CLARK

Associate Professor

Transcript

In this session, we're going to look at how does fair use apply. How do we use it? And we're going to give you some examples of that, but let's first start with this idea that we mentioned in our last session that fair use is a balancing test. This is important. There's no single rule that you can point to and say, is this fair use? It's complicated because there are tradeoffs. There are four factors that we look at as part of fair use, so let me talk about each of these. First, purpose of use. Why are you using this work? And that includes things like, are you going to make money doing this? It also includes things like, are you doing it for education? Are you doing it for criticism? Are you doing it for parody? Are you doing it for charity? Why are you doing it? And commercial works are not as easy to defend under fair use. Doesn't mean you'll lose, it just means it's harder to defend if you're doing something for profit. But there may be conflicts even within purpose of use. You're doing it for profit, you're trying to make money, you're clearly copying other people's works, or basing your work on them, but it's also a parody. So the purpose of the work is parody and making money. That's a conflict. Parody is well protected, making money not well protected, but parody overrules the making money argument. And so purpose of use is a complicated area of itself, but it's one of the factors that a judge will look at under a fair use defense. And keep in mind, you're always before a judge when you're using a fair use defense, because a fair use defense means you're in court. You don't have a fair use defense unless you're in court or arguing this is what we would have argued if we had gone to court. Maybe it will help you in a settlement before a court, but this is your defense that you're saying we would use before a judge. Second is, nature of the work. Now, what does that mean? Well, some works are better protected than others. We know, for example, that facts and data are not protected by copyright. Ideas are not protected by copyright, only creative expression is protected. And so if the work is mostly facts and data with some art around it or context like a physics textbook, then it's not very well protected. But if it's a fanciful story about mythical creatures or science fiction, if it's Star Wars, or Harry Potter, that's very well protected. That's the best protected under copyright law. Physics textbook, not too well protected. Harry Potter, very well protected, because copyright law loves art, not facts. Third is, the proportion taken. This, too, is complicated, because you would normally say, well, the proportion taken, let's see the book is 300 pages, I copied 2 pages, that's 2 out of 300. Most of the time, that's how we think of proportion taken, but sometimes, we say what you took is the heart of the work. What you took is, let's say you take a small portion of the Mona Lisa picture, and it's the background, not well protected. But you copy the smile and you may say, well, that's the heart of the work. That's what people are looking at here, not the background, not the furniture, not the scenery. Now to use a more modern example, a more relevant example. We'll talk about a soccer game, and how the heart of the work was the key issue there, as well as entertainment versus First Amendment rights. But the idea being, the proportion taken, may be the heart of the work is taken and that is a small percentage of the linear time or the pages, but it's a critical element of the creative work. Finally, the economic impact of the taking. How much money did it cost, that this person copied you? You're really looking on the impact on the person whose copyright was violated. Because fair use is a defense, so one of your defenses is, what I did didn't really cost them any money, didn't cost them any sales and so it's no big deal. What's their complaint? They didn't lose any money. And so if the economic impact is low, that's a good support for your fair use defense. There's some other factors that are occasionally relevant, particularly in the US. One of those is motive and intent. Internationally, this is less well protected or less well regarded, but judges will often ask about motive and intent. Part of the reason they ask is to think about how big should the fine be. How much should we punish an offender for violating your copyrights? If their intent seems pure or their motive is incidental or accidental, you may even say, eh, I think fair use should apply. Strictly speaking, it's not one of the four balancing tests, but sometimes it does apply and sometimes it matters to a judge. Finally, in the United States only, there's something called the First Amendment, which means the right of free speech. It's granted by the Constitution to the people of the American colonies, the American states and, therefore, it trumps anything else. If you have the First Amendment applying, you have a good defense against a copyright violation charge. That's usually like news reporting or something of that nature. Now I mentioned a soccer video. Soccer is a popular game, particularly in Europe. A game was played between two major countries and in the last few seconds of the game there was an incredible kick. In this kick, where a guy kicks the ball over his head, and it goes a long ways and gets into the goal during the last few minutes of the game. It breaks a tie in the game, and the team making where this incredible kick was made by one of their players, wins the game. This was an amazing thing to see. It was broadcast on a cable channel, limited viewing, and a news company, a news report picked up this broadcast feed and decided to use it in their nightly news. They put it in the nightly news and, as a result, they got sued because the company, who had limited distribution pay-per-view for the soccer game, said that's not fair. You can't take our work and put it on your entertainment show and get away with it. Now the company that did the news reporting says hey, it's fair use, we only took a small portion, but it was the heart of the work. So the fair use defense comes up and says, is it entertainment or is it news? And that's purpose of use. The court said it is news, we agree with that, but First Amendment does not give you the excuse to support what you did. Because basically, you showed the clip because it entertained people. You could have reported the news in text or in voice and said there was an amazing kick, the game was won. These are the facts, you don't need the video. The video is there to make people say, wow, that's why we have the video, it's entertainment. Second the nature of the work, is it a fact? A goal was scored, that's a fact, or is it drama? Look at this kick, it's drama, so they're losing on nature of the work. It's fiction or it's a drama, it's a dramatization. Portion taken they said, we only took a couple of seconds out of a hour plus game. But it's the heart of the work, it's the reason you'd buy a video. Finally, what's the economic impact? They debated on this and they argued, did it hurt video sales? Maybe, it's just a news report, but maybe it's the whole reason you'd buy the video. In the end, the TV station lost their fair use defense. The First Amendment right didn't help them because they said you have the right to report the news, you don't have the right to entertain. Thank you. We'll talk more about fair use in our next session. [MUSIC]

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